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Edward R. McNicholas

Partner
Washington, D.C. 
202.736.8010
202.736.8711 Fax

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EDWARD R. MCNICHOLAS is a partner in the Washington, D.C., office of Sidley Austin LLP. His practice focuses on clients facing complex information technology, constitutional and privacy issues in civil and white-collar criminal matters.

Mr. McNicholas has significant experience with a wide-range of cutting-edge Internet and information law matters involving privacy and data protection, online brand protection, eDiscovery, electronic surveillance, defamation, information security, cloud computing, trade secrets, social media, locational privacy, e-commerce, and national security. The 2007 Computerworld survey of "Best Privacy Advisers" recognized Mr. McNicholas as one of the "Top 25 Privacy Experts" in the country, and Mr. McNicholas and Sidley's Privacy and Data Security practice were selected for Chambers USA: America's Leading Lawyers for Business for 2008-2010 as well as Chambers Global for 2010.

Mr. McNicholas concentrates his practice on trial and appellate representations of technologically-sophisticated clients including telecommunications carriers, electronic service providers, financial services companies, and other companies facing complex personal information issues. He is also an experienced counselor, public policy advocate, and internal investigator.

Mr. McNicholas previously served as an Associate Counsel to President Clinton. In that capacity, he advised senior White House staff regarding various Independent Counsel, congressional and grand jury investigations, with a particular focus on issues of Executive privilege and electronic discovery. He also previously served as a desk officer at the U.S. Office of Government Ethics, where he helped agencies establish effective ethics compliance programs.

While at Sidley, his frequent internal investigation and litigation matters have frequently involved complex, multi-jurisdictional, and multi-national litigation issues and have included federal court jurisdictional and constitutional concerns, especially related to the First and Fourth Amendments, securities and investment fraud, corruption issues and other commercial litigation involving allegations of complex frauds. He has particular experience in the use of Internet and financial forensic analyses, the investigation of complex international frauds, and electronic discovery issues.

Mr. McNicholas also regularly represents churches and religiously-affiliated institutions and related nonprofit organizations on constitutional and other legal issues. He is a national co-chair of Sidley’s Religious Institutions Practice, which the New York Times recognized as representing “some of the country’s largest religious organizations.” (Oct. 9. 2006).

Litigation Representations

Mr. McNicholas’ major litigation representations include:

  • MDL 1791: In re National Security Agency Telecommunications Records Litigation - (N.D.Cal. and 9th Cir.) Defense of AT&T against constitutional and statutory claims in multiple purported class actions related to alleged national security programs.
  • Menges v. Walgreen Co. v. Blagojevich (Illinois state and federal courts) - Defense of Walgreens in suits related to whether pharmacists must dispense Plan B emergency contraception.
  • Crawford v. Marion County Election Board, No. 07-21 (U.S. 2008): Represented the National Law Center on Homelessness and Poverty and a coalition of other national homelessness groups as amici curiae in this significant challenge to voter identification requirements.
  • Disability Rights Council v. WMATA (D.D.C. 2006) - Defense of former paratransit provider in class action lawsuit alleging systematic violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, where Sidley prevailed against a motion to implead our client into the class action. 2006 WL 1102767 (D.D.C. 2006), affirmed, 239 F.R.D. 9 (D.D.C. 2006)
  • City of New York v. Fifth Avenue Presbyterian Church (S.D.N.Y., 2d Cir., U.S.) - Ongoing representation of the Fifth Avenue Presbyterian Church in a dispute over its homeless ministry, where Sidley has successfully defended a permanent injunction in favor of our client. 2006 WL 1116119 (2d Cir. Apr. 26, 2006), cert. denied, 2006 WL 2571352 (U.S. 2006).
  • Living Water Church of God v. Meridian Charter Township, No. 05-2309 (6th Cir. 2006) - Sidley represents a coalition of religious institutions as amici curiae regarding issues under the Religious Land Use and Institutionalized Persons Act.
  • Sylvia's Haven, Inc. v. Massachusetts Development Finance Agency (D.Mass, 2005; 1st Cir. 2006) Represented Sylvia’s Haven, Inc. in appeal of base closure issues, ultimately to the U.S. Court of Appeals for the First Circuit. The action was dismissed after a private resolution.
  • AT&T Corp. v. 2PrePaid Inc. (M.D. Fla. 2006) - Obtained damages and permanent injunction against unlawful Internet sales of counterfeit AT&T prepaid calling cards.
  • Boothe v. Hanson (Texas District Court 2005) - Obtained a blanket injunction against an elusive Internet critic in a case involving extensive use of Internet forensics. See “As Angry Patients Vent Online, Doctors Sue to Silence Them,” Wall Street Journal, Sept. 14, 2005 (discussing case).
  • Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004) - Represented the National Law Center on Homelessness and Poverty as amicus curiae in this significant Fourth and Fifth Amendment case regarding requirements to present identity papers during investigations.
  • AT&T Corp. v. CyberTelecom, Inc. (S.D. Fla. 2004) - Obtained preliminary and permanent injunctions against Internet distribution of counterfeit AT&T prepaid calling cards in a case involving extensive Internet forensic evidence.
  • In re Microsoft Corp. Antitrust Litigation, MDL No. 1332 (D. Md.) - Represented Microsoft in competitor class actions including those brought by Netscape and Burst. These actions were dismissed with prejudice after the parties reached private resolutions.
  • Physicians Interactive v. Lathian Systems, Inc., 2003 WL 23018270, 69 U.S.P.Q.2d 1981 (E.D.Va. Dec. 05, 2003) - Obtained preliminary injunction for plaintiffs alleging hacking of computer systems in order to obtain trade secrets. The action was dismissed after the parties reached a private resolution.
  • Globalsantafe Corp. v. Globalsantafe.Com, 250 F.Supp.2d 610, 74 U.S.P.Q.2d 1737 (E.D. Va. 2003) - Sidley developed and prevailed on a novel theory of in rem jurisdiction that asserted U.S. jurisdiction to enforce its resolution of an Internet domain name dispute regardless of a directly contradictory order from a court in South Korea.
  • Cable News Network, LP, LLLP v. CNNews.com, 56 Fed.Appx. 599 (4th Cir. 2003) - Sidley represented amicus AT&T Corp. on in rem issue regarding domain names under the Anticybersquatting Consumer Protection Act of 1999 (ACPA).
  • Bayer & Willis Inc. v. Republic of Gambia, 283 F.Supp.2d 1 (D.D.C. 2003) - Successfully represented AT&T Corp. against claims related to the Foreign Sovereign Immunities Act (FSIA).
  • Al-Abood v. El-Shamari, 217 F.3d 225 (4th Cir. 2000) - Affirming jury trial verdict Sidley won in favor of plaintiff on a variety of fraud, fiduciary duty, and conversion theories related to a complex international investment fraud.
  • Saenz v. Roe, 526 U.S. 489 (1999) - Represented the National Law Center on Homelessness and Poverty as amicus curiae regarding the protections of the Fourteenth Amendment’s right to travel.

Community Service

Mr. McNicholas frequently advises organizations that combat homelessness regarding complex constitutional issues at both the trial and appellate levels and before legislative bodies. His work for such organizations contributed substantially to the firm being awarded the 2004 Counsel Pro Bono Award by the National Law Center on Homelessness and Poverty.

Mr. McNicholas now serves as the Vice Chairman on the Board of Directors for the National Law Center on Homelessness and Poverty.

Selected Articles and Other Publications

Mr. McNicholas is a frequent commentator on privacy, data security, and information law issues and has written extensively on various information law and civil liberties topics for a variety of publications. He currently serves on the Advisory Board for the BNA Privacy & Security Law Report and one of his articles received a 2010 Burton Award for Legal Achievement. Many of his privacy articles are collected on the www.Sidley.com/InfoLaw site, including:

  • “Federal Court Dismisses Data Breach Class Action Brought Against J.P. Morgan Chase Based on Federal Preemption,” by Alan Charles Raul and Edward McNicholas, Privacy & Data Security Law Journal (October 2009).
  • “An Uneasy Peace: Maine’s Act to Prevent Marketing to Minors and the Continuing Problems of Privacy for Children and Teens,” by Edward McNicholas and Colleen Rutledge, BNA's Privacy & Security Law Report (Sept. 14, 2009).
  • “Developments in Data Breach Liability,” by Alan Raul, Edward McNicholas, et al., Privacy & Data Security Law Journal (September 2009).
  • “End of the Notice Paradigm? : FTC’s Proposed Sears Settlement Casts Doubt On the Sufficiency of Disclosures in Privacy Policies and User Agreements,” by Alan Raul, Edward McNicholas, et al., BNA's Electronic Commerce & Law Report (July 15, 2009).
  • “Reconciling European Data Privacy Concerns with US Discovery Rules: Conflict and Comity,” by Alan Raul, Edward McNicholas, et al., Global Competition Litigation Review (July 2009).
  • “National Security Letters: Practical Advice For Understanding and Handling Exceptional Requests,” by Edward McNicholas, BNA Privacy & Security Law Report (March 30, 2009).
  • “Assessing the EU Working Party’s Guidance on Harmonizing U.S. Discovery and EU Data Protection Requirements,” by Alan Raul, Edward McNicholas, et al., BNA Privacy & Security Law Report (March 9, 2009).
  • "SEC Sanctions Broker-Dealer/Investment Advisor for Willfully Failing to Safeguard Customers’ Personal Data," by Alan Charles Raul and Edward McNicholas, Privacy & Data Security Law Journal (January 2009).
  • “Damages for the Harm of Data Breaches and Other Privacy Claims,” by Alan Raul, Edward McNicholas, and Jennifer Tatel, BNA Privacy & Security Law Report (Sept. 15, 2008).
  • “Competitive Privacy: Towards A New Area of Privacy Litigation?,” by Edward McNicholas and Jennifer Tatel, IAPP Privacy Tracker (July/August 2008).
  • "French CNIL Examines Data Protection Issues Linked To U.S. Litigation Disclosures," by Alan Charles Raul and Edward McNicholas, Privacy & Data Security Law Journal (April 2008).
  • “New Laws Significantly Restrict Handling of Social Security Numbers,” by Alan Charles Raul and Edward McNicholas, Privacy & Data Security Law Journal (March 2008).
  • "New State Attempts at Data Security Laws Offer Uncertain Promise," by Alan Charles Raul, Edward McNicholas and Colleen Theresa Rutledge, Privacy and Security Law (Jan. 2008).
  • "A Path to Resolving European Data Protection Concerns With U.S. Discovery," by Stanley W. Crosley, Alan Charles Raul, Edward R. McNicholas and Julie M. Dwyer, Privacy and Security Law (Oct. 2007).
  • "Defendant Prevails in Privacy Case Where Data Theft Results in No Injury to Plaintiffs," by Alan Charles Raul and Edward McNicholas, 2 Privacy & Data Security Law Journal 1055 (Oct. 2007).
  • "International Information Security: A Brief Survey of Global Data Security Regime," by Alan Charles Raul, Edward R. McNicholas, et al., in BNA International Special Report, Security Breaches. (Nov. 2006); also published in World Data Protection Reporter (July 2006), Privacy and Security Law (June 2006).
  • "CFAA Permits Actions For Vicarious Liability Where Company Directs New Hire To Obtain Former Employer's Proprietary Data," by Alan Charles Raul and Edward R. McNicholas, 1 Privacy and Data Security Law Journal 282 (Feb. 2006).
  • "Information Security: An Overview of Legal Considerations on Securing Data in Cyberspace," by Alan Charles Raul, Edward R. McNicholas, and Julie Dwyer. Published in CIPerati, the newsletter of the Intellectual Property Subcommittee of the Committee on Cyberspace Law (April 2004).
  • "European Court of Justice's Landmark Decision on EU Data Protection Directive Accords Broad Scope to EU Privacy Regime, Addresses Applicability to Internet," by Alan Charles Raul, Edward R. McNicholas, Julie Dwyer, Privacy & Security Law Report (Dec. 2003).
  • "Who Owns the Data? Evolving Protections for Facts, Secrets and Personal Information in Cyberspace," Alan Charles Raul, Edward R. McNicholas, Claudia A. von Pervieux, AIPLA Conference Paper (April 2000)
  • Note, "Nonmutual Issue Preclusion Against States," 109 Harvard Law Review 792 (1996).
  • Case Comment, "City of Edmonds v. Oxford House," 109 Harvard Law Review 309 (1995).
  • Recent Case, "City of New York v. Dep’t of Commerce," 108 Harvard Law Review 971 (1995).

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